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Category: Landlord-Tenant

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Experience: Over 20 years experience handling landlord tenant problems for commercial and residential.

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I have filed a default against a garnishee for failing to respond

Customer Question

I have filed a default against a garnishee for failing to respond to the writ. I filed it with the courts on 2/3/12. Do I need to do anything else, this company still have not forwarded any of the garnishment payments and it will be time to serve another writ 3/12/12. Do I just wait, refile or what?

I'm so sorry for any delay - the JustAnswer website was having alot of trouble today and questions weren't showing up OR when experts would answer there was a server error OR some other problem.

I want to sincerely XXXXX XXXXX for your patience.

Then what you can do is file a motion for contempt against them with the court for their failure to comply with the court ordered garnishment.

What I would do is telephone them and inform them that if they don't send your garnishment within the next 3 days that you will have no alternative but to file a motion for contempt and sanctions against them for not complying with the court order.

OK, I got the judgment and I filed a writ to garnish, the debtor's employer did not start or withhold the wages as ordered.

I was told by one of the employers' personnel (the hr manager) that they forgot. They also never sent me the disclosure by or within the 14 days. To this day I still have not received nothing. I filed a default with the courts concerning this matter and still have not heard a word. I'm sure this person will now quit their job and I will get nothing because of the employer lack of concern and failure to comply.

I want some type of action, I need to know what my recourse of actions and options are

Customer:replied 3 years ago.

Here is a brief review to get you up to date.

12/13/11 filed writ for garnishment

12/21/11 debtor filed objection to garnishment

1/18/12 objection denied

all wages where ordered to be immediateld released and forwarded to myself the plainiff,

it was also stated that all monies were to be withheld by the employer until the objection to garnishment was completed

the employer told me that they forgot and they did not withhold the wages and they would begin immediately 2/2/12 (date I spoke to this person)

As of this date I still have not gotten anything, not even the original disclosure

Michigan allows for a judgment creditor to seek judgment against a garnishee for failure to answer a writ of garnishment. Grounds for liability are based on contempt of court and damages incurred by the judgment creditor due to the garnishee’s failure to respond to the garnishment. (See M.C.R. 3.101)

You file a motion for contempt of court and for damages against the employer for their failute to respond to the garnishment in District Court.

Garnishee defendants appeal by leave granted from the Genesee Circuit Court's order that reversed a district court order setting aside a judgment against garnishee defendants, and directed reinstatement of the judgment against the garnishee defendants. We vacate the circuit court's order reinstating the district court's judgment, and remand for further proceedings.

Garnishee defendants first argue that the district court should not have entered a default judgment against them because plaintiff did not comply with the procedural requirements pertaining to defaults and default judgments. Garnishee defendant's assertion in this regard is inopposite because there was no default judgment in this case. Plaintiff originally served garnishee defendants with a wage garnishment petition on July 14, 2007, for payment of a judgment debt owed by defendant. After garnishee defendants failed to respond to that writ of garnishment within the 14-day period set by MCR 3.101(H),1 plaintiff filed a motion to show cause why garnishee defendants failed to respond and why garnishee defendants should not be responsible for defendant's entire judgment debt. When garnishee defendants failed to appear at the hearing on the motion to show cause on March 18, 2008, the district court granted judgment in favor of plaintiff for the amount of defendant's judgment debt, $10,997.05.

MCR 2.603(A)(2) requires notice of entry of default to the defaulted party. It is undisputed that there was no entry of default in this case and, accordingly, no notice of such an entry. MCR 2.603(B)(1)(a)(ii) further requires notice of a request for entry of default judgment be made at least seven days prior to entry of default judgment if the relief sought differs in kind or amount from the pleadings. Plaintiff sought periodic garnishment payments in her writ of garnishment, but sought a lump sum judgment from garnishee defendants in her motion for order to show cause. However, the judgment against garnishee defendants was entered on the same day as the hearing on the motion to show cause. The requirements of MCR 2.603 were not followed because they did not apply, and the judgment against garnishee defendants was not styled as a default judgment. Because there was no default judgment, garnishee defendants' first claim of error fails.

Defendant filed for bankruptcy on August 3, 2007. This filing resulted in an automatic stay preventing the enforcement, against defendant or against property of his estate, of a prior judgment. 11 USC 362. Nevertheless, the district court's March 18, 2008 judgment against garnishee defendants followed. The judgment was entered on several grounds, including: 1) garnishee defendants violated a court order by “not paying plaintiff” pursuant to an earlier garnishee disclosure from January 2007, and 2) “[garnishee defendants were] with a request for garnishment periodic and garnishee disclosure and order to show cause to which [garnishee defendants] failed, neglected, or otherwise refused to respond.” Even though the district court later vacated this judgment against garnishee defendants, rejecting the first ground of the judgment because garnishee defendants were powerless to make garnishment payments following the stay, the circuit court reinstated the judgment on appeal because garnishee defendants “did not disclose” under the 14-day rule in MCR 3.101(H) and “ignored the show cause issued.”

In reinstating the judgment, the circuit court implicitly found that garnishee defendants were in criminal contempt. “[W]hen a court exercises its criminal contempt power it is not attempting to force the contemnor to comply with an order, but is simply punishing the contemnor for past misconduct that was an affront to the court's dignity.” Porter v. Porter, 285 Mich.App 450, 455; 776 NW2d 377 (2009). Some courts have concluded that a default judgment or contempt finding against a garnishee defendant does not relate to the defendant or the property of the defendant's estate, but instead creates an independent and personal liability against the garnishee defendant, so the default judgment or contempt finding does not violate the automatic stay under 11 USC 362. In re Sowers, 164 BR 256 (ED Va, 1994); In re Gray, 97 BR 930, 935-937 (ED Ill, 1989).2

However, under MCR 3.101, a judgment against a garnishee for contempt is inextricably related to the enforcement of a prior judgment against a defendant or his estate. Pursuant to MCR 3.101(S)(2), “If the garnishee fails to comply with the court order, the garnishee may be adjudged in contempt of court.” MCR 3.101(O)(7) provides, “Satisfaction of all or part of the judgment against the garnishee constitutes satisfaction of a judgment to the same extent against the defendant.” Reading these subrules together, if garnishee defendants had satisfied the $10,997.05 judgment of contempt, the same amount of defendant's outstanding judgment debt would have been satisfied, thereby violating the automatic stay under 11 USC 362.

We find persuasive and adopt the bankruptcy court's analysis of MCR 3.101 in In re Feldman, 303 BR 137 (ED Mich, 2003). In that case, the plaintiff obtained a default judgment against the defendant. Id. at 138. The plaintiff subsequently served a writ of garnishment on the defendant's employer, who responded that the defendant “worked for tips only so there was no way to garnish his wages.” Id. In response, the plaintiff filed a motion to review the employer's business records. Id. Thereafter, the defendant filed for bankruptcy in federal court. Id. Meanwhile, the employer failed to appear at the state court hearing to review its business records and a judgment was entered against the employer “for its failure to comply with Michigan's garnishment laws and procedures.” Id. The bankruptcy court concluded that the plaintiff's postpetition actions to obtain a judgment against the employer violated the stay because the actions were aimed to collect on the defendant's prepetition debt. Id. at 139-140. The court reasoned that “there would be no garnishment judgment against the employer absent the underlying debt.” Id. at 139. Citing MCR 3 .101(O)(7), the court further reasoned that satisfaction of all or part of the judgment against the employer would satisfy the same amount of the prepetition judgment against the defendant, and the defendant would then owe the employer on the claim under MCR 3.101(O)(2).

In light of our conclusions above, though the district court may have properly found garnishee defendants to be in contempt of court, the district court erred by entering a judgment in favor of plaintiff for the amount of defendant's judgment debt. Therefore, we vacate the circuit court's order reinstating the judgment against garnishee defendants. We decline to address garnishee defendants' last argument challenging the amount of the judgment of contempt. We do not retain jurisdiction.

Garnishee defendants, being the prevailing parties, may tax costs pursuant to MCL 7.219.

FOOTNOTES

1. MCR 3.101(H) provides, in relevant part:(H) Disclosure. The garnishee shall mail or deliver to the court, the plaintiff, and the defendant, a verified disclosure within 14 days after being served with the writ.* * *(2) Periodic Garnishments.(a) If not obligated to make periodic payments to the defendant, the disclosure shall so indicate, and the garnishment shall be considered to have expired.(b) If obligated to make periodic payments to the defendant, the disclosure shall indicate the nature and frequency of the garnishee's obligation. The information must be disclosed even if money is not owing at the time of the service of the writ.(c) If a writ or order with a higher priority is in effect, in the disclosure the garnishee shall specify the court that issued the writ or order, the file number of the case in which it was issued, the date it was issued, and the date it was served.

Filing a Request for GarnishmentYou must wait 21 days after your small claims judgment was signed before you can get a garnishment. There are two types of garnishment: 1) periodic, and 2) non-periodic.

A periodic writ of garnishment is used to garnish the defendant's wages, rent payments, land contract payments, or other debt which is paid to the defendant on a periodic basis. A periodic garnishment is valid for up to 91 days or until the judgment, interest, and costs are paid off, whichever occurs first.

A non-periodic writ of garnishment is used to garnish the defendant's bank account (except for wages that are deposited in the account) or other property. Once money has been garnished under the non-periodic writ, the writ is no longer valid. If there is a remaining balance on the judgment, you must get another writ to collect more money.An income tax refund garnishment is used to garnish the defendant's Michigan income tax.

Once money has been garnished under the income tax refund writ, the writ is no longer valid. If there is a remaining balance on the judgment, you must get another writ to collect more money. There is no authority to garnish federal or city income tax refunds.

Fill in the form using the instructions. The garnishee is the person or business who hascontrol or possession of the defendant's money. Once you complete the Request, youmust file it with the court that entered your judgment. The filing fee is $15.00.

Serving the Order for Garnishment

The court will issue the order (also called a writ) by signing the form. The Request and Writ must be served on the garnishee along with the Garnishee Disclosure, form MC 14. If the garnishment is for periodic payments, include a $6.00 disclosure fee with the forms. The cost of serving the Writ varies.

Disclosure

A garnishee is someone who has control over some or all of the money that is paid to a defendant in a garnishment proceeding. When a writ of garnishment is issued, thegarnishee is named in the order and is being ordered to give to the plaintiff all or part of the defendant's money that the garnishee has control over.

If someone is named in a writ of garnishment as a garnishee, they must first provideinformation to the court and the parties about any money of the defendant's that they have control over. This is called "disclosure." There are a number of ways to have control over the defendant's money. Some of the more common examples are: 1) as an employer, the garnishee has control over the defendant's paycheck; 2) as a bank or other financial institution, the garnishee has control of the defendant's accounts; 3) as a tenant the garnishee has control of the defendant's income that comes from payment of rent; or 4) as the Department of Treasury, the garnishee has control of the defendant's income tax return.

To make a disclosure, the garnishee must complete the Garnishee Disclosure, form MC 14, and mail it to the court and the parties within 14 days after receiving the writ ofgarnishment. If the garnishee fails to disclose within the time limit, the court can take action against the garnishee and the garnishee may be ordered to pay the full amount owed on the judgment as stated in the writ of garnishment.

After disclosure, the garnishee must withhold money as appropriate.

Objecting to a GarnishmentIf you have been served with a writ of garnishment and object to the writ, you may file an objection with the court using form MC 49, Objections to Garnishment and Notice ofHearing. Objections must be based on the one or more of the following:l the funds or property are exempt from garnishment by law.l garnishment is precluded by the pendency of bankruptcy proceedingsl garnishment is barred by an installment payment order.l garnishment is precluded because the maximum amount permitted by law is beingwithheld pursuant to a higher priority garnishment or order.l the judgment has been paid.l the garnishment was not properly issued or is otherwise invalid.

Filing a Request for Installment Payments

If you have a judgment against you and you want to make installment pyaments to pay off the judgment and the only funds you have to pay the judgment are wages for personal work and labor, you can file with the court a motion for installment payments. There is a $20.00 filing fee. If you have other sources of income for paying the judgment, you cannot request installment payments.

A hearing on this motion is not necessary. The other party has 14 days from the mailing of the motion to file an objection to your motion. If the other party does not file an objection, the motion can be granted without further hearing.

A person may file an objection to a motion for installment payments. An objection must be filed with the court within 14 days from the mailing of a Motion for Installment Payments, form MC 15. There is no form for filing an objection.

If an objection is filed, the court will either decide the motion for installment paymentsbased on the papers filed or notify the parties that a hearing will be required. Unless thecourt schedules the hearing and sends notice, the party who filed the motion forinstallment payments must contact the court for a hearing date and send notice of thehearing to the other party.

If the court grants installment payments, you are responsible for sending a copy of theorder to the plaintiff. If a writ of garnishment was already issued and your employer iscurrently withholding funds from your earnings, you will also need to send a copy of theorder to your employer. Otherwise, your employer will continue to withhold funds.

Removing an Order for Installment Payments

If an Order for Installment Payments, form MC 15a, has been entered, a motion can befiled to set aside the order if the defendant fails to pay the installment payments asrequired in the order. Unless the defendant requests a hearing within 14 days after service of the Motion to Set Aside Installment Payments, form MC 16, the court can enter an order to set aside the order for installment payments without a hearing.If the court grants the order setting aside installment payments, the plaintiff (the party who asked for the order) must send a copy of the order to the defendant. If the order reinstates a previously issued writ of garnishment, the plaintiff will also need to send a copy of the order to the garnishee defendant (defendant's employer). Otherwise, the defendant's employer will continue to suspend withholdings.

Receiving Money

The garnishee has 14 days after the Writ is served to let you, the court, and the defendant know if any money is available for garnishment. This information will be provided on form MC 14, Garnishee Disclosure. If you are trying to garnish wages, you will only receive part of the wages based on a federal formula.

If money is available, it will be withheld from the defendant right away. However, thismoney will be held for 28 days to allow the defendant time for objections. If there are noobjections, the withheld money will be automatically sent to you after 28 days. If thegarnishment is for periodic payments, money will continue to be sent to you as payments become due to the defendant until the writ expires.

So, since you have waited far beyond the required time - you most certainly can pursue the petitionf or contempt against the employer.

I will tell you that...the things you have to go through to be an Expert are quite rigorous.

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